Chapter 2 -

Extraordinary Ability
A. Eligibility
When seeking classification as a person of extraordinary ability, a petitioner
files an Immigrant Petition for Alien Workers (Form I-140) on behalf of a
noncitizen(who may be the petitioner) with evidence demonstrating that the
beneficiary is eligible.

Eligibility for Extraordinary Ability Classification

The person has extraordinary ability in the sciences, arts, education, business, or
athletics, which has been demonstrated by sustained national or international
acclaim, and whose achievements have been recognized in the field through
extensive documentation.

The person seeks to enter the United States to continue work in the area of
extraordinary ability.

The person's entry into the United States will substantially benefit the United States
in the future.

Self-Petitioners

A petition filed on behalf of a person with extraordinary ability does not need
to be supported by a job offer; therefore, anyone can file the petition on behalf
of the person, including the noncitizen who may file as a self-petitioner. The
person must still demonstrate, however, that he or she intends to continue
work in the area of his or her extraordinary ability and that his or her work will
substantially benefit the United States in the future.

1. Sustained National or International Acclaim

When filing a petition for a person with extraordinary ability, the petitioner must
submit evidence that the person has sustained national or international
acclaim and that the person's achievements have been recognized in the field
of expertise. In determining whether the beneficiary has enjoyed "sustained"
national or international acclaim, the officer should consider that such acclaim
must be maintained. However, the term sustained does not imply an age limit
on the beneficiary. A beneficiary may be very young or early in his or her
career and still be able to show sustained acclaim. There is also no definitive
time frame on what constitutes sustained.

If a person was recognized for a particular achievement, the officer should

determine whether the person continues to maintain a comparable level of
acclaim in the field of expertise since the person was originally afforded that
recognition. A person may, for example, have achieved national or
international acclaim in the past but then failed to maintain a comparable level
of acclaim thereafter.

2. Continuing to Work in the Area of Expertise

To qualify as a person with extraordinary ability, the beneficiary must intend to

continue to work in the area of his or her expertise.

The officer may encounter instances where it is difficult to determine whether

the person’s intended employment falls sufficiently within the bounds of his or
her area of extraordinary ability. Some of the most problematic cases are
those in which the beneficiary’s sustained national or international acclaim is
based on his or her abilities as an athlete, but the beneficiary’s intent is to
come to the United States and be employed as an athletic coach or manager.
Competitive athletics and coaching rely on different sets of skills and in
general are not in the same area of expertise. However, many extraordinary
athletes have gone on to be extraordinary coaches.
Therefore, in general, if a beneficiary has clearly achieved recent national or
international acclaim as an athlete and has sustained that acclaim in the field
of coaching or managing at a national level, officers can consider the totality
of the evidence as establishing an overall pattern of sustained acclaim and
extraordinary ability such that USCIS can conclude that coaching is within the
beneficiary’s area of expertise.

Where the beneficiary has had an extended period of time to establish his or
her reputation as a coach beyond the years in which he or she had sustained
national or international acclaim as an athlete, depending on the specific facts,
officers may place heavier, or exclusive, weight on the evidence of the
beneficiary’s achievements as a coach or a manager.

3. Entry to Substantially Benefit the United States

To qualify as a person with extraordinary ability, the person’s entry must

substantially benefit the United States in the future. Although neither the
statute nor the regulations specifically define the statutory phrase
“substantially benefit,” it has been interpreted broadly.

Whether the petitioner demonstrates that the person’s employment meets this
requirement requires a fact-dependent assessment of the case. There is no
standard rule as to what will substantially benefit the United States. In some
cases, a Request for Evidence (RFE) may be appropriate if an officer is not
yet satisfied that the petitioner has met this requirement.

B. Evidence of Extraordinary Ability

The regulations describe various types of evidence that the petitioner must
submit in support of a petition as documentation of the beneficiary’s
extraordinary ability. In general, the petitioner must submit evidence that:

● The person has sustained national or international acclaim; and

● The person’s achievements have been recognized in the field of
expertise.
This initial evidence must include either evidence of a one-time achievement
(for example, a major internationally recognized award, such as the Nobel
Prize) or at least three of the types of evidence listed in the regulations.

The evidence provided in support of the petition need not specifically use the
words "extraordinary." Rather, the material should be such that it is readily
apparent that the person's contributions to the field are qualifying. Also,
although some of the regulatory language relating to evidence occasionally
uses plurals, it is entirely possible that the presentation of a single piece of
evidence in a specific evidentiary category may be sufficient.

On the other hand, the submission of voluminous documentation may not

contain sufficient persuasive evidence to establish the beneficiary’s eligibility.
The evidence provided in support of the petition must ultimately establish that
the beneficiary "is one of that small percentage who have risen to the very top
of the field of endeavor."

Officers should use a two-step analysis to evaluate the evidence submitted

with the petition to demonstrate eligibility for classification as a person with
extraordinary ability.

Petition for Extraordinary Ability Classification: Overview of Two-Step

Evidentiary Review

Step Assess whether evidence meets regulatory criteria: Determine, by a

1 preponderance of the evidence, which evidence submitted by the petitioner
objectively meets the parameters of the regulatory description that applies to
that type of evidence (referred to as "regulatory criteria").

Step Final merits determination: Evaluate all the evidence together when
2 considering the petition in its entirety for the final merits determination, in the
context of the high level of expertise required for this immigrant
classification.

1. Initial Evidence of Extraordinary Ability

The first step of the evidentiary review is limited to determining whether the
evidence submitted with the petition meets the regulatory criteria. The
evidence must be comprised of either a one-time achievement (that is, a
major, internationally recognized award) or at least three of the ten regulatory
criteria or be comparable to at least three of the ten regulatory criteria. The
officer should apply a preponderance of the evidence standard when making
this determination.

For purposes of the first step of the analysis, officers should consider the
quality and caliber of the evidence to determine whether a particular
regulatory criterion has been met, to the extent the criterion has qualitative
requirements. Officers should not yet make a determination regarding whether
or not the person is one of that small percentage who have risen to the very
top of the field or if the person has sustained national or international acclaim.

The following tables describe the limited determinations the officer should
make in the first step of the analysis to determine whether the person has met
the applicable evidentiary criteria, including any qualifying comparable
evidence.

Criterion 1: Receipt of lesser nationally or internationally recognized prizes or

awards for excellence in the field of endeavor.[18]
First, USCIS determines if the person was the recipient of prizes or awards. The
description of this type of evidence in the regulation indicates that the focus should
be on the person's receipt of the awards or prizes, as opposed to the employer's
receipt of the awards or prizes.

Second, USCIS determines whether the award is a lesser nationally or

internationally recognized prize or award which the person received for excellence
in the field of endeavor. As indicated by the plain language of the regulation, this
criterion does not require an award or prize to have the same level of recognition
and prestige associated with the Nobel Prize or another award that would qualify as
a one-time achievement.

Examples of qualifying awards may include, but are not limited to:

● Certain awards from well-known national institutions or well-known

professional associations;
● Certain doctoral dissertation awards; and
● Certain awards recognizing presentations at nationally or internationally
recognized conferences.

Considerations:

Relevant considerations regarding whether the basis for granting the prizes or
awards was excellence in the field include, but are not limited to:

● The criteria used to grant the awards or prizes;

● The national or international significance of the awards or prizes in the field;
● The number of awardees or prize recipients; and
● Limitations on competitors.

While many scholastic awards do not have the requisite level of recognition, there
may be some that are nationally or internationally recognized as awards for
excellence such that they may satisfy the requirements of this criterion.

For example, an award available only to persons within a single locality, employer,
or school may have little national or international recognition, while an award open
to members of a well-known national institution (including an R1 or R2 doctoral
university[19]) or professional organization may be nationally recognized.

Similarly, national or international recognition is most often associated with awards

given to individuals at the highest level in a given field. However, there is no
specific requirement that an award be open to all members of the field, including
the most experienced, in order to meet the requirements of this criterion. While
limitations on competitors can be a relevant factor, in some instances the evidence
may establish that an award or prize is nationally or internationally recognized
despite being limited to youth, amateur competitors, or early-career professionals.
For instance, awards presented to new players or “rookies” in major sports leagues
may garner national or even international media coverage.

Criterion 2: Membership in associations in the field for which classification is

sought that require outstanding achievement of their members, as judged by
recognized national or international experts in their disciplines or fields.[20]
USCIS determines if the association for which the person claims membership
requires that members have outstanding achievements in the field as judged by
recognized experts in that field.

Examples of associations in the field requiring outstanding achievement of their

members may include, but are not limited to:

● A membership in certain professional associations; and

● A fellowship with certain organizations or institutions.

Considerations:

The petitioner must show that membership in the association requires outstanding
achievements in the field for which classification is sought, as judged by recognized
national or international experts.

Associations may have multiple levels of membership. The level of membership

afforded to the person must show that in order to obtain that level of membership,
recognized national or international experts judged the person as having attained
outstanding achievements in the field for which classification is sought.

As a possible example, general membership in an international organization for

engineering and technology professionals may not meet the requirements of the
criterion. However, if that same organization at the fellow level requires, in part, that
a nominee have accomplishments that have, for example, contributed importantly
to the advancement or application of engineering, science, and technology, and
that a council of experts and a committee of current fellows judges the nominations
for fellows, that higher, fellow level may be qualifying.

Another possible qualifying example may include membership as a fellow in a

scientific society dedicated to artificial intelligence if the membership is based on
recognition of a nominee’s significant, sustained contributions to the field of artificial
intelligence, and a panel of current fellows makes the selection of new fellows.

Relevant factors that may lead to a conclusion that the person's membership in the
association(s) was not based on outstanding achievements in the field include, but
are not limited to, instances where the person's membership was based solely on
the following factors (by themselves or in the aggregate):

● A level of education or years of experience in a particular field;

● The payment of a fee or by subscribing to an association's publications; and
 ● A requirement, compulsory or otherwise, for employment in certain
occupations, as commonly seen with union membership or guild affiliation for
actors.

Criterion 3: Published material about the person in professional or major

trade publications or other major media relating to the person's work in the
field for which classification is sought. Such evidence must include the title,
date, and author of the material, and any necessary translation.[21]
First, USCIS determines whether the published material was related to the person
and the person's specific work in the field for which classification is sought.

Examples of qualifying media may include, but are not limited to:

● Professional or major print publications (newspaper articles, popular and

academic journal articles, books, textbooks, or similar publications)
regarding the person and the person’s work;
● Professional or major online publications regarding the person and the
person’s work; and
● Transcripts of professional or major audio or video coverage of the person
and the person’s work.

Considerations:

The published material should be about the person, relating to the person’s work in
the field, not just about the person’s employer and the employer’s work or another
organization and that organization’s work. Any materials the petitioner submits
must demonstrate the value of the person’s work and contributions, and must not
be solely focused on the employer or organization that the person is associated
with. Marketing materials created for the purpose of selling the person's products or
promoting the person’s services are not generally considered to be published
material about the person (this includes seemingly objective content about the
beneficiary in major print publications that the beneficiary or the beneficiary’s
employer paid for).

However, the person and the person’s work need not be the only subject of the
material; published material that covers a broader topic but includes a substantial
discussion of the person’s work in the field and mentions the person in connection
to the work may be considered material about the person relating to the person’s
work.

Moreover, officers may consider material that focuses solely or primarily on work or
research being undertaken by a team of which the person is a member, provided
that the material mentions the person in connection with the work or other evidence
in the record documents the person’s significant role in the work or research.

Evidence may include documentation such as print or online newspaper or

magazine articles, popular or academic journal articles, books, textbooks, similar
publications, or a transcript of professional or major audio or video coverage of the
person and the person’s work.

Second, USCIS determines whether the publication qualifies as a professional

publication, major trade publication, or major media publication.

In evaluating whether a submitted publication is a professional publication, major

trade publication, or major media, relevant factors include the intended audience
(for professional and major trade publications) and the relative circulation,
readership, or viewership (for major trade publications and other major media).

Criterion 4: The person's participation, either individually or on a panel, as a

judge of the work of others in the same or an allied field of specification for
which classification is sought.[22]

USCIS determines whether the person has acted as the judge of the work of others
in the same or an allied field of specification.

Examples of judging the work of others may include, but are not limited to:

● Peer reviewing for a scholarly journal, as evidenced by a request from the

journal to the person to do the review, accompanied by proof that the review
was actually completed;
● Peer review of abstracts or papers submitted for presentation at scholarly
conferences in the respective field;
● Serving as a member of a Ph.D. dissertation committee that makes the final
judgment as to whether a candidate’s body of work satisfies the
requirements for a doctoral degree, as evidenced by departmental records;
and
● Peer reviewer for government research funding programs.

Considerations:

The petitioner must show that the person has not only been invited to judge the
work of others, but also that the person actually participated in the judging of the
work of others in the same or allied field of specialization. For example, a petitioner
might document the person’s peer review work by submitting a copy of a request
from a journal to the person to do the review, accompanied by evidence confirming
that the person actually completed the review.

Criterion 5: The person's original scientific, scholarly, artistic, athletic, or

business-related contributions of major significance in the field.[23]
First, USCIS determines whether the person has made original contributions in the
field.

Second, USCIS determines whether the original contributions are of major

significance to the field.

Examples of relevant evidence include, but are not limited to:

● Published materials about the significance of the person’s original work;

● Testimonials, letters, and affidavits about the person’s original work;
● Documentation that the person’s original work was cited at a level indicative
of major significance in the field; and
● Patents or licenses deriving from the person’s work or evidence of
commercial use of the person’s work.

Considerations:

Analysis under this criterion focuses on whether the person’s original work
constitutes major, significant contributions to the field.

Evidence that the person’s work was funded, patented, or published, while
potentially demonstrating the work’s originality, will not necessarily establish, on its
own, that the work is of major significance to the field.

For example, published research that has provoked widespread commentary on its
importance from others working in the field, and documentation that it has been
highly cited relative to others’ work in that field, may be probative of the significance
of the person’s contributions to the field of endeavor.

Similarly, evidence that the person developed a patented technology that has
attracted significant attention or commercialization may establish the significance of
the person’s original contribution to the field. If a patent remains pending, USCIS
generally requires additional supporting evidence to document the originality of the
person’s contribution, such as detailed reference letters.

Detailed letters from experts in the field explaining the nature and significance of
the person’s contribution may also provide valuable context for evaluating the
claimed original contributions of major significance, particularly when the record
includes documentation corroborating the claimed significance.
Submitted letters should specifically describe the person’s contribution and its
significance to the field and should also set forth the basis of the writer’s knowledge
and expertise.

Criterion 6: The person's authorship of scholarly articles in the field, in

professional or major trade publications or other major media.[24]

First, USCIS determines whether the person has authored scholarly articles in the
field.

As defined in the academic arena, a scholarly article reports on original research,

experimentation, or philosophical discourse. It is written by a researcher or expert
in the field who is often affiliated with a college, university, or research institution.
Scholarly articles are also generally peer reviewed by other experts in the field of
specialization. In general, it should have footnotes, endnotes, or a bibliography, and
may include graphs, charts, videos, or pictures as illustrations of the concepts
expressed in the article.

Examples of scholarly article authorship include, but are not limited to:

● Publications in professionally-relevant peer-reviewed journals; and

● Published conference presentations at nationally or internationally
recognized conferences.[25]

For other fields, a scholarly article should be written for learned persons in that
field. ("Learned" is defined as "having profound knowledge gained by study").[26]
Learned persons include all persons having profound knowledge of a field.

Second, USCIS determines whether the publication qualifies as a professional

publication, major trade publication, or major media publication.

In evaluating whether a submitted publication is a professional publication or major

media, relevant factors include the intended audience (for professional journals)
and the circulation or readership relative to other media in the field (for major
media).
 Criterion 7: Display of the person's work in the field at artistic exhibitions or
showcases.[27]

First, USCIS determines whether the work that was displayed is the person's work
product.

The description of this type of evidence in the regulation provides that the work
must be the person's work product.

Second, USCIS determines whether the venues (virtual or otherwise) where the
person's work was displayed were artistic exhibitions or showcases.
Merriam-Webster's online dictionary defines exhibition as a public showing (as of
works of art, objects of manufacture, or athletic skill).[28]

Criterion 8: The person has performed in a leading or critical role for

organizations or establishments that have a distinguished reputation.[29]
First, USCIS determines whether the person has performed in a leading or critical
role for an organization, establishment, or a division or department of an
organization or establishment.

Examples of lead or critical roles may include, but are not limited to:

● Senior faculty or senior research position for a distinguished academic

department or program;
● Senior research position for a distinguished non-academic institution or
company;
● Principal or named investigator for a department, institution, or business that
received a merit-based government award, such as an academic research
or Small Business Innovation Research (SBIR) grant;[30]
● Member of a key committee within a distinguished organization;
● Founder or co-founder of, or contributor of intellectual property to, a startup
business that has a distinguished reputation; and
● Leading or critical role for a distinguished organization or a distinguished
division of an institution or company, as explained in detail by the director or
a principal investigator of the relevant organization or division.

Considerations:

In evaluating such evidence, officers examine whether the role is (or was) leading
or critical.

For a leading role, officers look at whether the evidence establishes that the person
is (or was) a leader within the organization or establishment or a division or
department thereof. A title, with appropriate matching duties, can help to establish
that a role is (or was), in fact, leading.

For a critical role, officers look at whether the evidence establishes that the person
has contributed in a way that is of significant importance to the outcome of the
organization or establishment's activities or those of a division or department of the
organization or establishment.

A supporting role may be considered critical if the person's performance in the role
is (or was) important. It is not the title of the person's role, but rather the person's
performance in the role that determines whether the role is (or was) critical.

This is one criterion where letters from persons with personal knowledge of the
significance of the person's leading or critical role can be particularly helpful to
officers in making this determination, so long as the letters contain detailed and
probative information that specifically addresses how the person's role for the
organization, establishment, division, or department was leading or critical.
Evidence of experience must consist of letters from employers.[31]

Second, USCIS determines whether the organization or establishment, or the

department or division for which the person holds or held a leading or critical role,
has a distinguished reputation.

The relative size or longevity of an organization or establishment is not in and of

itself a determining factor but is considered together with other information to
determine whether a distinguished reputation exists. Other relevant factors for
evaluating the reputation of an organization or establishment can include the scale
of its customer base or relevant media coverage.

For academic departments, programs, and institutions, officers may also consider
relevant and credible national rankings and receipt of government research grants
as positive factors.

For a startup business, officers may consider evidence that the business has
received significant funding from government entities, venture capital funds, angel
investors, or other such funders commensurate with funding rounds generally
achieved for that startup’s stage and industry, as a positive factor regarding its
distinguished reputation.

Merriam-Webster's online dictionary defines “distinguished” as “marked by

eminence, distinction, or excellence” or “befitting an eminent person.”[32]

Criterion 9: The person has commanded a high salary, or other significantly

high remuneration for services, in relation to others in the field.[33]
USCIS determines whether the person's salary or remuneration is high relative to
the compensation paid to others working in the field. USCIS does not interpret the
phrase “has commanded” to mean that the person must have already earned such
salary or remuneration in order to meet the criterion. Rather, a credible contract or
job offer showing prospective salary or remuneration may establish that the person
has been able to command such compensation.

Evidence relevant to demonstrating high remuneration may include, but is not

limited to:

● Tax returns, pay statements, or other evidence of past salary or

remuneration for services;
● Contract, job offer letter, or other evidence of prospective salary or
remuneration for services; and
● Comparative wage or remuneration data for the person’s field, such as
geographical or position-appropriate compensation surveys.

Considerations:

Evidence regarding whether the person's compensation is high relative to that of

others working in the field may take many forms. Examples may include, but are
not limited to, geographical or position-appropriate compensation surveys and
organizational justifications to pay above the compensation data. The following
websites, among others, may be helpful in evaluating the relative compensation for
a given field:

● The Bureau of Labor Statistics (BLS) Overview of BLS Wage Data by Area
and Occupation webpage; and
● The Department of Labor's Career One Stopwebsite.

When evaluating whether a comparison between the beneficiary’s documented

remuneration and the remuneration in the survey is accurate, the following
considerations, among others, may be relevant:

● The description of the occupation. Broad descriptions that include multiple

occupations or multiple industries may not provide an accurate comparison
to others in the field. For example, “directors and producers” might be listed
as a single category across industries, but evidence that a film director
receives high remuneration based on a broad range of occupational data
that include disparate occupations such as film director and radio show
producer, may not be sufficiently probative;
 ● The validity of the survey. Some websites provide user-reported salary data,
which may not be a valid comparison if, for example, too few users reported
their salaries or the data is otherwise not credible or reliable;
● Location and currency. Officers evaluate persons working outside of the
United States based on the wage statistics or comparable evidence relevant
to the applicable work location, rather than by simply converting the salary to
U.S. dollars and then viewing whether that salary would be considered high
in the United States; and
● Salary rate being measured. Officers consider whether the comparison data
measures an hourly rate or an annual salary. Another consideration is how
that information compares to the beneficiary’s pay. Many artists are not paid
an hourly rate but instead are paid a daily rate (which may not be equivalent
to 8 hours) or are paid a certain amount for a project (involving an unknown
number or hours). However, hourly wage data may still be probative if the
petitioner submits documentation regarding the number of hours worked.
Such documentation can include, but is not limited to, pay statements,
personnel records, or testimonial evidence from the relevant employer.

For entrepreneurs or founders of startup businesses, officers consider evidence

that the business has received significant funding from government entities, venture
capital funds, angel investors, or other such funders in evaluating the credibility of
submitted contracts, job offer letters, or other evidence of prospective salary or
remuneration for services.

Criterion 10: Commercial successes in the performing arts, as shown by box

office receipts or record, cassette, compact disk, or video sales.[34]

USCIS determines whether the person has enjoyed commercial successes in the
performing arts.

This criterion focuses on volume of sales and box office receipts as a measure of
the person's commercial success in the performing arts. Therefore, the mere fact
that a person has recorded and released musical compilations or performed in
theatrical, motion picture, or television productions would be insufficient, in and of
itself, to meet this criterion. The evidence must show that the volume of sales and
box office receipts reflect the person's commercial success relative to others
involved in similar pursuits in the performing arts.

Comparable evidence: Comparable evidence to establish the person's

eligibility if the standards do not readily apply to the person's occupation.[35]
USCIS determines if the evidence submitted is comparable to the evidence
required in 8 CFR 204.5(h)(3).

This regulatory provision provides petitioners the opportunity to submit comparable

evidence to establish the person's eligibility, if it is determined that the evidentiary
criteria described in the regulations do not readily apply to the person's occupation.
When evaluating such comparable evidence, officers must consider whether the
regulatory criteria are readily applicable to the person's occupation and, if not,
whether the evidence provided is truly comparable to the criteria listed in that
regulation.

A general unsupported assertion that the listed evidentiary criterion does not readily
apply to the petitioner’s occupation is not probative. Similarly, general claims that
USCIS should accept witness letters as comparable evidence are not persuasive.
However, a statement from the petitioner can be sufficient to establish whether a
criterion is readily applicable if that statement is detailed, specific, and credible.

Although officers do not consider comparable evidence where a particular criterion

is readily applicable to the person’s occupation, a criterion need not be entirely
inapplicable to the person’s occupation. Rather, the officer considers comparable
evidence if the petitioner shows that a criterion is not easily applicable to the
person’s job or profession.[36]

As with all extraordinary ability petitions, officers may consider comparable

evidence in support of petitions for persons working in science, technology,
engineering, or mathematics (STEM) fields. Specifically, if a petitioner
demonstrates that a particular criterion does not readily apply to the person’s
occupation, the petitioner may submit evidence that is of comparable significance
to that criterion to establish sustained acclaim and recognition.

For instance, if the publication of scholarly articles is not readily applicable to a

person whose occupation is in an industry rather than academia, a petitioner might
demonstrate that the person’s presentation of work at a major trade show is of
comparable significance to that criterion.

As another example, if the petitioner demonstrates that receipt of a high salary is

not readily applicable to the person’s position as an entrepreneur, the petitioner
might present evidence that the person’s highly valued equity holdings in the
startup are of comparable significance to the high salary criterion.
 The following are other non-exhaustive examples of where the comparable
evidence provision might apply:

● A person who is an Olympic coach whose athlete wins an Olympic medal

while under the person's principal tutelage would likely constitute evidence
comparable to that in 8 CFR 204.5(h)(3)(v); or
● Election to a national all-star or Olympic team might serve as comparable
evidence for evidence of memberships in 8 CFR 204.5(h)(3)(ii).

There is no comparable evidence for the one-time achievement of a major,

international recognized award.

Notably, the evidence evaluated in this step is also reviewed in the next step
where the officer must determine whether the person is one of that small
percentage who has risen to the very top of the field of endeavor, and that the
person has sustained national or international acclaim.

However, objectively meeting the regulatory criteria in the first step alone does
not establish that the person in fact meets the requirements for classification
as a person with extraordinary ability.

For example:

● Participating in the judging of the work of others in the same or an allied

field of specialization alone, regardless of the circumstances, should
satisfy the regulatory criteria in the first step of the analysis. However,
the second step requires the officer to evaluate the person's
participation to determine whether it was indicative of the person being
one of that small percentage who have risen to the very top of the field
of endeavor and enjoying sustained national or international acclaim.
● Publishing scholarly articles in professional or major trade publications
or other major media alone, regardless of the caliber, should satisfy the
regulatory criteria in the first step of the analysis. However, the second
step requires the officer to evaluate the person's publications to
determine whether they were indicative of the person being one of that
small percentage who have risen to the very top of the field of endeavor
and enjoying sustained national or international acclaim.
The question of whether the person is one of that small percentage who have
risen to the very top of the field of endeavor and enjoys sustained national or
international acclaim should be addressed in the second step of the analysis
(final merits determination). In the first step, the officer is only required to
determine if the evidence objectively meets the regulatory criteria.

2. Final Merits Determination

In the second step of the analysis, the officer should consider the petition in its
entirety to determine eligibility according to the standard. To establish
eligibility, the petition must demonstrate that the person has sustained national
or international acclaim and that their achievements have been recognized in
the field of expertise, indicating that the person is one of that small percentage
who has risen to the very top of the field of endeavor. The officer applies a
preponderance of the evidence standard when making this determination.

An officer may not limit the kind of evidence the officer thinks the person
should be able to submit and deny the petition if that particular type of
evidence (whether one of the prescribed types or comparable evidence) is
absent, if the person nonetheless submitted other types of evidence that meet
the regulatory requirements for the classification.

For example, an officer may think that if a person is extraordinary, there

should be published articles about the person and the person’s work.
However, an officer cannot deny the petition because no published articles
were submitted, so long as the petitioner has submitted other evidence that
meets the three qualifying criteria which demonstrates the person is in fact
extraordinary. Approval or denial of a petition is based on the type and quality
of evidence submitted rather than assumptions about the failure to address
different criteria.

At this step, officers consider any potentially relevant evidence in the record,
even if such evidence does not fit one of the above regulatory criteria or was
not presented as comparable evidence. The officers consider all evidence in
the totality. Some evidence may weigh more favorably on its own, while other
evidence is more persuasive when viewed with other evidence.
The following are examples of situations where evidence in the record may
help officers evaluate the quality of the initial or comparable evidence and
determine whether in a totality analysis that considers all of the evidence, the
person is among the small percentage at the top of the field and has
sustained national or international acclaim:

● The record demonstrates that the person has published articles in

particularly highly-ranked journals (including published conference
proceedings) relative to other journals in the field, as demonstrated by,
for example, evidence the petitioner provides regarding the journal’s
impact factor. Depending on the level of recognition of the journals in
question, as demonstrated by evidence in the record, there may be
particular prestige or acclaim associated with publication in such
journals, especially if the person is the most significant contributor to the
published article, a senior author, or the sole author of the article;
● The petitioner provides evidence demonstrating that the total rate of
citations to the person’s body of published work is high relative to others
in the field, such as the person has a high h-index for the field.
Depending on the field and the comparative data the petitioner provides,
such evidence may indicate a person’s high overall standing for the
purpose of demonstrating that the person is among the small
percentage at the top of the field;
● The petitioner documents the person’s employment or research
experience with leading institutions in the field (such as U.S. universities
that have been recognized as having high or very high research activity
by the Carnegie Classification of Institutions of Higher Education,
foreign universities with comparably high research activity, or a
university that is highly regarded according to a widely recognized
metric such as the QS World University Rankings). Such employment or
experience can be a positive factor toward demonstrating that the
person is among the small percentage at the top of the field;
● The record establishes that the person has received unsolicited
invitations to speak or present research at nationally or internationally
recognized conferences in the field. This type of invitation is generally
indicative of a person’s high standing and recognition for achievements
in the field; and
 ● The record establishes that the person is named as an investigator,
scientist, or researcher on a peer-reviewed and competitively-funded
U.S. government grant or stipend for STEM research. This type of
evidence can be a positive factor indicating a person is among the small
percentage at the top of the person’s field.

In all cases, the petitioner must provide sufficient context regarding the above
evidence and considerations to demonstrate that the evidence meets the
relevant criteria and to establish the person’s extraordinary ability in the totality
of the circumstances. This means that the petitioner must explain the
significance of the submitted evidence, and how it demonstrates that the
person has achieved sustained national or international acclaim and
recognition in their field of expertise.

While a person may be stronger in one particular evidentiary area than in

others, the totality of the evidence must establish that the person is
extraordinary. If the officer determines that the petitioner has failed to
demonstrate eligibility, the officer should not merely make general assertions
regarding this failure. Rather, the officer must articulate the specific reasons
as to why the officer concluded that the petitioner has not demonstrated by a
preponderance of the evidence that the person has extraordinary ability. As
with all adjudications, if an officer believes that the facts stated in the petition
are not true, and can articulate why in the denial, then the officer denies the
petition and explains the reasons in the written denial.

If requesting additional evidence is appropriate, officers should provide some

explanation of the deficiencies in the evidence already submitted and, if
possible, examples of persuasive evidence that the petitioner might provide to
corroborate the statements made in the petition. If a petitioner has submitted
evidence that the petitioner believes establishes the person's extraordinary
ability, merely restating the evidentiary requirements or stating that the
evidence submitted is insufficient does not clarify to the petitioner how to
overcome the deficiencies.

3. Other Evidentiary Considerations

Letters of Support
Many petitions to classify a person with extraordinary ability contain letters of
support. Letters of support, while not without weight, should not form the
cornerstone of a successful claim for this classification. Rather, the statements
made by the witnesses should be corroborated by documentary evidence in
the record. The letters should explain in specific terms why the witnesses
believe the beneficiary to be of the caliber of a person with extraordinary
ability. Letters that merely reiterate USCIS’ definitions relating to this
classification or make general and expansive statements regarding the
beneficiary and the beneficiary’s accomplishments are generally not
persuasive.

The relationship or affiliation between the beneficiary and the witness is also a
factor the officer should consider when evaluating the significance of
witnesses’ statements. It is generally expected that one whose
accomplishments have garnered sustained national or international acclaim
would have received recognition for their accomplishments well beyond the
circle of their personal and professional acquaintances.

In some cases, letters from others in the beneficiary’s field may merely make
general assertions about the beneficiary, and at most, indicate that the
beneficiary is a competent, respected figure within the field of endeavor, but
the record lacks sufficient, concrete evidence supporting such statements.
These letters should be considered, but do not necessarily show the
beneficiary’s claimed extraordinary ability.

Evaluating Immigrant Petitions Filed on Behalf of O-1 Nonimmigrants

An officer might encounter a case where a petition is filed on behalf of a

person who was previously classified as an O-1 nonimmigrant with
extraordinary ability, or extraordinary achievement in the case of persons in
the motion picture and television industry. Though the prior approval of an O-1
petition is a relevant consideration and can be an indicator of eligibility in
adjudicating an immigrant petition for a person with extraordinary ability, it is
not determinative.

Due to the similarities in many of the evidentiary requirements, some courts

have asked USCIS to provide an explanation as to why, if the person had
previously been classified in a roughly analogous nonimmigrant category,
USCIS has determined that the person is not eligible for the
employment-based immigrant visa classification in question.

For this reason, where possible, officers issuing denials in such cases should
provide a brief discussion as to why, notwithstanding the previous O-1
nonimmigrant visa petition approval, the petitioner has failed to meet its
burden to establish that the beneficiary is eligible for classification as an
immigrant with extraordinary ability.